Faculty of Law Graduate Theses

Permanent URI for this collection

https://hdl.handle.net/1974/841

Browse

Now showing 1 - 5 of 72

Judicial Review of Systemic Administrative Injustice
Schafer, Devan; Law; Metcalf, Cherie
I argue in this thesis for judicial intervention in cases of systemic administrative injustice. This phrase is meant to capture instances where systemic dysfunction or inequity within administrative institutions becomes determinative or obstructive of legal rights and interests. I provide four illustrative examples of systemic administrative injustice in Chapter 1. A central claim here is that there are no legal remedies for systemic administrative injustice because there are no conceptual tools available to translate systemic dysfunction into any cognizable legal vocabulary. Administrative law has historically focused on reviewing individual decisions or discrete components of a regime, and legal theory more broadly tends to ignore the institutional dimension of law. This conceptual lacuna is reflected in administrative law’s doctrinal and remedial boundaries. Wider dysfunction is excluded because it cannot be addressed given our individualistic and non-institutional understanding of law and legal authority. To remedy this shortcoming, I draw on the work of Lon Fuller to argue that the very institutional forms that the law takes can provide the type of evaluative framework that would allow for judicial oversight of systemic administrative injustice. Building on Fuller’s emphasis on legal institutions as purposive and constituted by moral principles, I argue that dysfunctional adjudicative regimes can be read as undermining the institutional purpose of adjudication or as a failure to properly instantiate the constitutive moral principles of adjudication. Systemic administrative injustice can therefore be read as a failure to maintain fidelity to the legislative intent as revealed by the choice of institutional form. I then link Fuller’s understanding of institutional forms to the idea that tribunals have a “nature and function,” arguing that the way this concept functions doctrinally reveals that fairness review already rests on a purposive and normatively thick understanding of law’s institutional forms. The thesis concludes with an exploration of the institutional weaknesses of the judiciary that weigh against judicial involvement in the broader administrative regime. I stress the need for a comparative institutional analysis, and end by suggesting that the “experimentalist” approach adopted by American courts overseeing structural reform provides a promising blueprint for judicial review of systemic administrative injustice.
Lower Tax on Innovation Output: The Uneasy Case Against an Innovation Box in Canada
Minor, Ryan Albert; Law; Metcalf, Cherie
The innovation box (also known as a patent box) offers a reduced rate of tax for firms that create and commercialize certain forms of intellectual property (IP). The innovation box has been justified on the basis that it discourages firms from relocating valuable intellectual property to lesser taxed jurisdictions, and also that it encourages real activity including R&D and related commercialization. Some authors have argued that the Canadian government should implement an innovation box. In the 2022 Federal Budget, the federal government indicated that it would study whether an innovation box would be beneficial for Canada. This thesis investigates the arguments offered in support of implementing an innovation box in Canada. The thesis first explores the argument that the innovation would discourage firms from migrating IP income outside of the country using profit shifting techniques. The thesis then explores the argument that the innovation box would lead to greater R&D and related commercialization. These arguments are explored using several sources including a unique database of patent application for a sample of the top Canadian headquartered R&D performers in Canada (with custom computer code), corporate tax data obtained from the Canada Revenue Agency and an informal interview with the leader of international tax with a “big 4” accounting firm. In addition, numerous secondary sources were consulted including academic journals and government reports. The central claim of the thesis is that the innovation box would not offer any tangible benefit to Canada. There is little evidence that profit shifting using IP is a significant drain on the Canadian treasury. For various reasons, there is little reason to believe that an innovation box would encourage greater R&D or related commercialization in Canada.
Does Conscience subvert the Law in the context of Constructive Trusts?
Elia, Matthew S.; Law; Freedman, David
This thesis sought to address the question, “Does conscience subvert the rule of law?” in cases involving constructive trusts in Canada. It was prompted, in part, by the Canadian Supreme Court’s recent decision in Moore v Sweet which brings to the fore the many issues that exist related to use of conscience and constructive trusts in the law. The thesis first identified differences between constructive trusts in jurisdictions with a British Commonwealth legal heritage. It also broadly examined the historical evolution of conscience as well as theoretical concerns related to its use in legal doctrine. The thesis found three categories of cases where conscience interacted meaningfully, for better or worse, with the law. In the first category judges referenced the needs of conscience explicitly in a way to reflect their bare moral opinion while lacking doctrinal support for their decision. The second involved use of conscience substantively in doctrine but arguably not in a way that was offensive to the rule of law. In the third category concerns of conscience seem to have motivated a court towards a particular result. Instead of relying substantively on those concerns they stretched, distorted, or ignored available legal principles to effect justice. This practice can perpetuate confusion in the law making it difficult to apply evenly in the future and can be argued to be no better than the approach in category one. It can be further argued that Moore v Sweet is an example of category three where the Supreme Court’s decision distorted principles to achieve justice. Moreover, it also raises issues that will likely be problematic for future application outside of the family dynamic. The thesis further explored the lower court’s alternative solution in Moore, namely, an equitable assignment, which can be rooted in conscience. Lastly, if that solution is too radical or otherwise insufficient, there may not be a ‘good way’ of addressing this problem. We may be then left with a resolution that is not all that different from where Equity has been forced to stretch and reshape the law to do justice throughout its history.
Integrative Reflective Practice in Canada and Australia: Enhancing Legal Education, Pedagogy, and Professionalism
Leering, Michele Marie Ann; Law; Aiken, Sharry; Knutsen, Erik
The need to reimagine legal education as a more vibrant, engaging, and rigorous professional learning experience has become a pedagogical imperative for Canadian law schools. A stronger culture of reflective inquiry and professionalism within the legal profession has also become essential. To be better prepared to face a myriad of interconnected and complex challenges, twenty-first century legal professionals need to strengthen their capacity to be systematically and constructively reflective. Law has been slow to recognize the pedagogical value of reflective practice, with the result that it has been under-theorized, under-valued, and under-utilized across the entire professional learning spectrum. This contrasts significantly with a growing body of theoretical, empirical, and applied scholarship recognizing its value in all other professions. To address the lacuna in legal education pedagogy and scholarship, this dissertation explores why and how reflective practice should be cultivated as an important professional competency during law school. Using a multiple case study methodology that included interviews with more than 50 legal educators, I compare and contrast how reflective practice is understood and implemented in Canadian and Australian legal education. Micro, meso, and macro influences favouring reflective practice as a professional competency for both educators and students are discerned. I identify ten types of benefits for students, as well as seven variations of opportunities and catalysts for introducing it and 15 categories of pedagogical methods. A theoretical framework for integrative reflective professionalism is proposed to guide implementation efforts. To explain how different domains or dimensions of reflection (on learning/practice, self, critical, collective, and integrative) can be nurtured, research findings from other professions and US and UK legal education scholarship, coupled with discoveries from the case studies, are presented and curated. A synthesis of the findings informs recommendations for reimagining legal education by implementing a pedagogy of reflection iteratively across the curriculum, including perils and pitfalls to be avoided. The micro, meso and macro factors that might best enable its acceptance as a professional competency in law in Canada are identified. The capacity for disciplined and systematic integrative reflective practice will better equip future legal professionals to provide responsive, visionary, and ethical leadership on a myriad of issues, including access to justice and creating people-centred justice systems, and to respond to the dire reality of a future of unrelenting and disorienting change and increasing challenges to the rule of law.
Implementation of the Right to Inclusive Higher Education in Ethiopia: the Case of University Students with Disabilities
Worku, Bekele; Law; Aiken, Sharryn
Background: The UN Convention on the Rights of Persons with Disabilities (CRPD) guarantees its subjects the right to inclusive education. The Convention obliges its member states to enact efficient domestic laws and establish institutional frameworks that protect, promote and ensure this right, as countries cannot discharge their responsibilities without the domestication and practical application of the rules recognized in the Convention. Objective: The study aims to assess the existence and efficiency of Ethiopian national laws and institutional frameworks to implement the right to inclusive higher education in line with the human rights approach enshrined in the CRPD. An emphasis on the case of university students with visual disabilities has been made. Method: In addition to the doctrinal analysis of the rules and principles enshrined in the CRPD and Ethiopian laws governing the right to inclusive education, the study examines the practical implementation of this right in universities using a deductive qualitative research method. The latter method studied the perspectives and lived experiences of university students with visual disabilities in Ethiopia. Conclusion: The study established that the existing Ethiopian legal and institutional frameworks are inadequate to fully ensure the right to inclusive education of university students with visual disabilities. Specifically, the laws are insufficient to guarantee the provision of reasonable accommodations and to ensure the accessibility of educational services. As no awareness creation programs or training are required by law, the attitudes of the university staff and students toward learners with disabilities are discriminatory and restraining. Institutional frameworks established at federal, provincial, and university levels are incompetent in implementing the rules and remedying transgressions committed against these individuals. The research thus recommends that the Ethiopian government enact new laws, modify existing ones, and establish effective institutional mechanisms to fully ensure the right to inclusive higher education of its citizens with visual disabilities.

Browse

Recent Submissions